Supreme Court Justice Antonin Scalia on Monday urged everyone to celebrate the birthday of the U.S. Constitution tomorrow -- except those who think the document is an "empty body" whose meaning can be filled in by activist judges. In that case, Scalia said in his best New York accent, "Fugget about the Constitution!"
Scalia spoke to a large audience at The George Washington University on the eve of Constitution Day, which marks the anniversary of the signing of the Constitution in 1787. The event was co-sponsored by ConSource, a project launched in 2007 to digitize and spread the word about a vast range of constitutional source documents.
As he often does when extolling the text of the Constitution, Scalia criticized his colleagues for their "activism" in creating new human rights not articulated by the framers. He made much of the fact that the right to privacy can nowhere be found in the document, yet the Supreme Court has discovered and cultivated it over the decades.
It has gotten to the point, Scalia said, that the current "national debate" over the power of the National Security Agency to track private citizens' phone calls will be decided "not by Congress, but by my court, because of the court's arrogation to itself ... [the power] to determine what privacy rights ought to exist." The court, he said, is "the branch that knows the least" about issues of national security.
Scalia poked fun at other high courts, including those in India and Germany, which he said have even broader mandates to create and enforce policy beyond the judicial power as envisioned by the U.S. Constitution's framers. "When I complain about the activism of my court," Scalia said, he reminds hiself how much worse it is elsewhere. "My goodness, I feel so much better."